June 1, 2017

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First comes the passage of a stunningly punitive anti-immigrant state law. Then come the lawsuits, and the years’-long courtroom battles. At every juncture there are protests and there is moral outrage—to say nothing of the harm inflicted on immigrant families whose futures are at stake. Some aspects of the law might be blocked by the courts, but others go into effect. That is the dance now familiar to those who follow the fights over immigration policy, even as each subsequent state law manages to find new ways to harass and intimidate immigrants. Texas’s SB 4, signed into law in an unannounced Sunday night Facebook livestream by Gov. Greg Abbott on May 7, is but the latest to step into this routine. But this time, the dance is different.1

SB 4 is the most dramatic state crackdown yet on so-called “sanctuary cities,” and comes right at a moment when the Trump administration has sought to do the same at the federal level. Instead of merely pursuing undocumented immigrants, as other state-level anti-immigrant laws have done, SB 4, which passed the Texas House 94 to 53, attempts to abolish sanctuary cities in the state by making local officials who refuse to accommodate the federal government’s requests to help enforce immigration law criminally liable, and even subject to removal from office. SB 4 bars local agencies from adopting any policy that might stand in the way of the enforcement of federal immigration laws.2

In its intended effects, SB 4 is very similar to some of its most punitive anti-immigrant predecessors like SB 1070, Arizona’s “show me your papers” law, or Proposition 187, California’s landmark, voter-approved anti-immigrant law, which sought to bar undocumented immigrants from accessing any public services, including public education. The intent of all three are to constrict the lives of immigrants and undocumented immigrants in particular that life in those states becomes unbearable. Key provisions of both SB 1070 and Prop 187 were eventually blocked by the courts after extended legal battles. And legal challenges to SB 4 have already been filed. But, say legal experts, immigrants and their allies cannot assume that past legal victories suggest that parts of SB 4, too, will be overruled.3

Like SB 1070, SB 4 authorizes law enforcement officers to ask about the immigration status of anyone they stop or arrest for any other reason. But it goes further. It requires that law enforcement officers become extensions of Immigration and Customs Enforcement, and adds criminal penalties to any local official who speaks out against this or directs their staff toward a different policy. And since Department of Homeland Security Secretary John Kelly has called on ICE to pursue any undocumented immigrant for removal, regardless of their criminal background, undocumented immigrants who come into contact with ICE in this way are likely to be deported, whether or not they have ever committed a crime.4

Police chiefs and sheriffs who direct their staff not to question arrestees about their immigration status would be in violation of the law. Their jurisdictions would face civil penalties, which start at $1,000 for the first day and escalate to $25,000 per day per violation, with “each day of a continuing violation … constitut[ing] a separate violation for the civil penalty.” Public officials who violate SB 4, including making so much as a public statement endorsing a sanctuary policy, face prosecution for a Class A misdemeanor and even removal from office.5

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SB 4 makes local officials who refuse to help the federal government enforce immigration law criminally liable.

SB 4 is Texas’s acknowledgment that the federal government is totally dependent on local law enforcement agencies to carry out its deportation agenda. ICE alone does not have the staffing power, detention bed space, or resources to pursue and remove as many immigrants as Trump has promised it will. So ICE relies on local law enforcement and in particular, that initial point of contact between police officers and those they detain and arrest to locate potentially deportable immigrants. Under programs initiated and ramped up during the Obama era, digital fingerprint data from those who are arrested (even if never charged) are shared with the federal government, which will occasionally ask local law enforcement agencies to hold on to someone on behalf of the federal government. The state of Texas wants to make that detainer request mandatory, and SB 4 is the state’s attempt to declare itself aligned with the Trump administration’s deportation agenda.6

The question of whether complying with a detainer request is voluntary or mandatory is already the subject of plenty of litigation. Some sheriffs, like Austin’s Sally Hernandez, who on January 20 announced that she would not comply with every detainer request from ICE, have recognized that blurring the lines between local law enforcement and federal immigration enforcement damages the relationship between police and the communities they’re supposed to protect.7

“The public must be confident that local law enforcement is focused on local public safety, not on federal immigration enforcement,” Hernandez said earlier this year. “Our jail cannot be perceived as a holding tank for ICE or that Travis County deputies are ICE officers.”8

Under SB 4, sheriffs, police chiefs, and other law enforcement officers who refuse requests from the federal government to hold on to someone in a local jail past their scheduled release date would be violating the law. By protecting every law enforcement officer’s right to question anyone they choose about their immigration status, critics say SB 4 opens the door to racial profiling. What, after all, does an undocumented immigrant “look like?”9

While SB 4 is not the first state law to try to attack sanctuary policies, Texas has made sure to attach the most punitive enforcement measures to its law this time, says Rick Su, a professor of immigration law at the University of Buffalo. “State attacks on local government are not new,” Su says, “But put them all together, and certainly SB 4 is ramping up enforcement mechanisms in ways we haven’t seen in earlier anti-sanctuary laws.”10

The bill goes into effect on September 1. Within days of Abbott’s signing of SB 4, the first lawsuits were filed in opposition. On May 9, the city of El Cenizo in Maverick County, together with the League of United Latin American Citizens (LULAC), challenged SB 4. This week El Paso County and the Texas Organizing Project Education Fund filed their own lawsuit doing the same. Last Thursday, the ACLU joined El Cenizo’s suit.11

SB 4 “was adopted with a discriminatory effect, takes power out of the hands of local officials and seeks to federalize local law enforcement agencies,” attorney Jose Garza said at a press conference this week, ABC reported. Garza is representing the county and sheriff of El Paso.12

These lawsuits might seem to follow the well-trod choreography. Like Arizona’s SB 1070 and even California’s Prop 187, passed almost 25 years ago, Texas’s SB 4 makes a new advancement in attacks on immigrants. Lawsuits were filed almost immediately after the passage of those laws, and several key provisions were put on hold while cases wound through the courts. But the political and legal terrain is different now.13

The primary legal arguments undergirding legal challenges to California’s Prop 187, Arizona’s SB 1070, and the many copycat laws it inspired were built on the legal principle of pre-emption. That is, that the federal government, and the federal government alone, has the authority to set and enforce immigration priorities and policies. Plaintiffs challenging Arizona and California at the time could argue, legally, that Arizona was overstepping its authority. It fit the political moment—the Obama administration sought to portray itself as taking a more humane position while states like Arizona wanted to enact harsher immigration enforcement.14

This legal argument is a robust one; pre-emption has been the primary case that the left has made when challenging state-level anti-immigrant legislation. But, with Donald Trump in the White House, the state of Texas and the federal government would seem to be aligned in their priorities.15

Legal experts warn that immigrants and their allies should not assume that SB 4 will be over-ruled.

What’s more, this is not a fight between states and the federal government anymore. This is a fight between states trying to rein in localities and localities trying to preserve their independence. “There’s no 10th Amendment that protect cities from states in the same way it protects states from the federal government,” says Huyen Pham, a professor of immigration law at Texas A&M University.16

“This is a new legal frontier,” Pham says. “It’s really local government law’s moment to shine.”17

That is not to say that plaintiffs have not reached for the pre-emption argument in their complaints. But in addition to challenging SB 4 on pre-emption grounds, plaintiffs are testing out new legal arguments.18

In their complaint, El Cenizo and LULAC cite a short provision added to the federal Immigration and Nationality Act in 1996, Section 1373, which already bars cities and states from standing in the way of the information sharing to and from localities and the federal government regarding immigration. El Cenizo is attempting to argue that it already complies with Section 1373, largely because technological advances in information sharing make this kind of data collection and sharing between localities and the federal government automatic at this point.19

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The thing about Section 1373, says Su of the University of Buffalo, is “it didn’t have any enforcement mechanism to it which is probably why I have not seen any enforcement action based on it.” El Cenizo is arguing that if the premise of SB 4 relies on Section 1373, and to the extent that SB 4 tries to force localities to do more for the federal government than Section 1373 requires, Texas is overstepping its authority. While the 10th Amendment, which traditionally protects—and limits—the autonomy of states, LULAC and El Cenizo are attempting to argue that it also protects individuals and municipalities from states.20

In this new legal territory, says Pham, “I’m not sure how this story ends.”21

Luis Vera, an attorney representing LULAC, concedes as much. “We don’t know which way this is going to go,” Vera told The Nation. “It’s a pretty novel argument that we’re building.”22

“SB 4 is the first time [Texas] has gone after public officials, and worse, law enforcement officials,” Vera said. “The 10th Amendment goes to local governments having the opportunity to direct their own policy.” Vera also argues that the Texas Constitution protects public officials who want to maintain their sanctuary city policies.23

Gov. Abbott, for his part, told the Latino community in Texas last week that critics of SB 4 are “fear-mongering,” and that the law should not worry anyone “who’s not a criminal.” He also added, by way of justification, “Obviously, with my wife being the first Hispanic first lady of the state of Texas, I care very much about the Hispanic community.”24

The legal fight is just one step to resisting SB 4 before it’s set to go into effect later this summer. But already, its effects are being felt. Already, local police departments have seen a drop in Latinos reporting crime and in particular, domestic violence.26

“People are already trying to strategize,” said Maria Ibarra Rodriguez, the education and GIS project specialist at La Union del Pueblo Entero in the Rio Grande Valley in Texas. “In a region where immigrants are constantly interacting with ICE, Border Patrol, or police officers day in day out one way or another, this law will give them the full authority to go out and do traffic stops based solely on the fact that you might be undocumented or you might be an immigrant.”27

It’s not September yet, but, Ibarra says, “People are asking themselves: what does life look for us now?”28

Julianne HingTwitterJulianne Hing is a contributing writer at The Nation, where she covers immigration and the politics of the changing demography of the United States.